Amicus Curiae Brief — Kaley Chiles, Petitioner v. Patty Salazar, in Her Official Capacity as Executive Director of the Colorado Department of Regulatory Agencies, et al.
Supreme Court briefJun 13, 2025
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No. 24-539
In the
Supreme Court of the United States
____________________________
KALEY CHILES,
v.
Petitioner,
PATTY SALAZAR, in her official capacity as Executive
Director of the Department of Regulatory Agencies,
et al.,
Respondents.
_________________________
On Writ of Certiorari to the United States Court of
Appeals for the Tenth Circuit
_________________________
BRIEF OF AMICUS CURIAE
CATHOLICVOTE.ORG EDUCATION FUND IN
SUPPORT OF PETITIONER
_________________________
SCOTT W. GAYLORD
HIGH POINT UNIVERSITY SCHOOL OF LAW
APPELLATE ADVOCACY CLINIC
One University Parkway
High Point, NC 27268
Phone: (336) 841-2635
Email: sgaylord@highpoint.edu
Counsel for Amicus Curiae
LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com
i
TABLE OF CONTENTS
Page
Table of Authorities ................................................. ii
Interests of Amicus .................................................. 1
Summary of Argument ............................................ 2
Argument.................................................................. 4
I.
The Tenth Circuit’s opinion adopts a
professional-speech-as-conduct doctrine that
contravenes NIFLA by focusing on whether a
professional is speaking and regulating the
act of communication itself, not a separate
form of conduct. ............................................. 4
II.
Button, White, Hurley, and 303 Creative
confirm that professional speech, like other
forms of expression, receives full First
Amendment protection. ............................... 22
Conclusion .............................................................. 37
ii
TABLE OF AUTHORITIES
Page(s)
Cases
303 Creative LLC v. Elenis,
600 U.S. 570 (2023) ..................................... 22, 31-33
Ashcroft v. ACLU,
535 U.S. 564 (2002) ................................................ 16
Bigelow v. Virginia,
421 U.S. 809 (1975) ................................................ 32
Boy Scouts of America v. Dale,
530 U.S. 640 (2000) ............................................ 2, 34
Brown v. Ent. Merchs. Ass’n,
564 U.S. 786 (2011) ................................................ 20
Brown v. Hartlage,
456 U.S. 45 (1982) .................................................. 27
Chiles v. Salazar,
116 F.4th 1178 (10th Cir. 2024) ....... 1, 2, 6, 8, 9, 11,
12, 13, 19, 22, 29, 36
Cohen v. California,
403 U.S. 15 (1971) ................................ 12, 15, 16, 21
iii
Erznoznik v. City of Jacksonville,
422 U.S. 205 (1975) .......................................... 18, 20
First Nat. Bank of Boston v. Bellotti,
435 U.S. 765 (1978) ................................................ 17
Giboney v. Empire Storage & Ice Co.,
336 U.S. 490 (1949) .................... 2-4, 6, 12-14, 34, 37
Hines v. Pardue,
117 F.4th 769 (5th Cir. 2024) .......................... 12, 24
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) .................................. 12, 13, 23, 24
Hurley v. Irish-American Gay, Lesbian, and
Bisexual Group of Boston,
515 U.S. 557 (1995) ................................. 1, 28-31, 33
King v. Governor of New Jersey,
767 F.3d 216 (3d Cir. 2014) ............................... 5, 13
Kleindienst v. Mandel,
408 U.S. 753 (1972) ................................................ 18
Lowe v. SEC,
472 U.S. 181 (1985) ................................................ 11
Marbury v. Madison,
5 U.S. 137 (1803) .................................................... 21
iv
Martin v. City of Struthers,
319 U.S. 141 (1943) ................................................ 18
Moore-King v. County of Chesterfield,
708 F.3d 560 (4th Cir. 2014) .................................... 4
NAACP v. Button,
371 U.S. 415 (1963) ........................ 15, 23, 24, 25, 27
Nat’l Inst. of Family and Life Assocs. v. Becerra,
585 U.S. 755 (2018) ..... 2-7, 10, 12, 14, 18, 21, 23-25,
27, 33, 38
Otto v. City of Boca Raton,
981 F.3d 854 (11th Cir. 2020) .............. 12, 13, 20, 30
Pacific Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal.,
475 U.S. 1 (1986) .................................................... 17
FCC v. Pacifica Found.,
438 U.S. 726 (1978) ................................................ 29
Pickup v. Brown,
740 F.3d 1208 (9th Cir. 2014) .............................. 6, 7
Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992) ................................................ 14
Pleasant Grove City v. Summum,
555 U.S. 460 (2009) ................................................ 17
v
Police Dep’t of City of Chicago v. Mosley,
408 U.S. 92 (1972) .................................................. 33
R.A.V. v. St. Paul,
505 U.S. 377 (1992) ................................................ 14
Reed v. Town of Gilbert,
576 U.S. 155 (2015) ................................................ 21
Republican Party of Minnesota v. White,
536 U.S. 765 (2002) ................................................ 26
Riley v. Nat’l Fed. of the Blind of N.C., Inc.,
487 U.S. 781 (1988) .............................. 14, 23, 32, 33
Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U.S. 819 (1995) .................................... 16, 17, 28
Rumsfeld v. Forum for Academic and Inst.
Rights, Inc.,
547 U.S. 47 (2006) .................................................. 15
Snyder v. Phelps,
562 U.S. 443 (2011) ................................................ 18
Sorrell v. IMS Health Inc.,
564 U.S. 552 (2011) .......................................... 14, 18
Telescope Media Group v. Lucero,
936 F.3d 740 (8th Cir. 2019) .................................. 15
vi
Texas v. Johnson,
491 U.S. 397 (1989) .......................................... 17, 20
Tingley v. Ferguson,
47 F.4th 1055 (9th Cir. 2022) .......... 6, 12, 14, 21, 36
Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503 (1969) ................................................ 12
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994) .................................... 16, 25, 28
United States v. Alvarez,
567 U.S. 709 (2012) .................................................. 5
United States v. Eichman,
496 U.S. 310 (1990) ................................................ 25
United States v. Stevens,
559 U.S. 460 (2010) .......................................... 14, 19
W.V. State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) ................................................ 29
Whitney v. California,
274 U.S. 357 (1927) ................................................ 29
Wollschlaeger v. Governor of Florida,
848 F.3d 1293 (11th Cir. 2017) .................. 13, 21, 25
vii
Zauderer v. Off. of Disciplinary Counsel of Supreme
Court of Ohio,
471 U.S. 626 (1985) ...................................... 3, 27, 37
Constitutional and Statutory Provisions
U.S. Constitution, First Amendment ...... 2, 9, 11-13,
15-22, 24, 26, 27, 29-34, 36
Colo. Rev. Stat. § 12-245-202(3.5) ............. 1, 8, 9, 32
Colo. Rev. Code § 12-245-224(1)(t)(V)...................... 1
Other Authorities
American Bar Association Model Rule 8.4 ....... 34-37
Minnesota Code of Judicial Conduct ..................... 26
Ronald D. Rotunda, Heritage Foundation Legal
Memorandum (No. 191) ......................................... 37
Standing Committee on Ethics and Professional
Responsibility, Memorandum, December 22,
2015 ........................................................................ 36
1
INTERESTS OF AMICUS 1
CatholicVote.org Education Fund (“CVEF”) is a
nonpartisan voter education program devoted to
serving the Nation by supporting educational
activities that promote an authentic understanding
of ordered liberty and the common good. Given its
educational mission, CVEF is deeply concerned that
Chiles v. Salazar, 116 F.4th 1178 (10th Cir. 2024)
threatens the ability of professionals in any licensed
field to speak freely when treating, counseling,
representing, or advising their patients and clients.
The object of Colo. Rev. Code § 12-245-202(3.5) and
§ 12-245-224(1)(t)(V) (collectively, the “Ban” or
“Counseling Ban”) “is simply to require
[professionals] to modify the content of their
expression to whatever extent” the legislature may
want, thereby promoting “messages of [its] own.”
Hurley v. Irish-American Gay, Lesbian, and
Bisexual Group of Boston, 515 U.S. 557, 578 (1995).
The law targets particular speech (expression
directed at changing a person’s sexual orientation or
gender identity) when uttered by licensed
counselors. Consequently, the Ban “turn[s] on the
1 Pursuant to Rule 37.6, amicus states that no counsel for a
party authored this brief in whole or in part, and no person
other than the amicus and its counsel made any monetary
contribution intended to fund the preparation or submission of
this brief.
2
fact that professionals [are] speaking,” moving the
law outside Giboney’s narrow exception for
regulations of conduct that incidentally involves
speech. Giboney v. Empire Storage & Ice Co., 336
U.S. 490, 502 (1949). CVEF, therefore, comes
forward to support the right of all professionals to
practice their vocation—and convey their views—in
a manner that is consistent with their training,
expertise, and (as here) religious faith.
SUMMARY OF ARGUMENT
The First Amendment safeguards the “freedom
to think as you will and to speak as you think.” Boy
Scouts of America v. Dale, 530 U.S. 640, 660-61
(2000). Kaley Chiles, a licensed counselor and a
practicing Christian, seeks to counsel her minor
clients “who privilege their faith above their
feelings” and “believe their faith and their
relationships with God supersede romantic
attractions.” Chiles, 116 F.4th at 1193 (cleaned up).
Engaging only in expression, Chiles wants to speak
to her clients—and her clients want to hear—about
her thoughts and strategies to help them align their
sexual identity with their faith.
The lower court’s opinion not only prevents her
from doing so, but also contravenes this Court’s
holding in Nat’l Inst. of Family and Life Assocs. v.
Becerra that “[s]peech is not unprotected merely
because it is uttered by ‘professionals.’ ” 585 U.S.
3
755, 767 (2018) (“NIFLA”). The Tenth Circuit now
joins the Ninth Circuit in permitting States to
silence the speech of licensed professionals, who
wish to express views with which the government
disagrees, simply by labeling such expression as
“conduct” or “treatment.” But as NIFLA explained,
professional speech is speech and receives full First
Amendment protection except in two narrow
circumstances—where the government compels
disclosure of factual, noncontroversial information
as part of a professional’s commercial speech
(Zauderer v. Off. of Disciplinary Counsel of Supreme
Court of Ohio, 471 U.S. 626 (1985)) or regulates
conduct that involves speech only incidentally
(Giboney, 336 U.S. at 502)—and then only if the
governmental regulation does not “turn[] on the fact
that professionals were speaking.” NIFLA, 585 U.S.
at 768.
Colorado’s Counseling Ban does not fit within
either exception. The communications Chiles wants
to have with her minor clients are not commercial
speech and concern controversial topics—sexual
orientation and gender identity. Moreover, because
the Ban restricts the act of communicating itself (the
discussion between a professional and her minor
patients) and not some independent “conduct [that]
was in part initiated, evidenced, or carried out by
means of language, either spoken, written, or
printed,” Colorado cannot squeeze its regulation into
4
the Giboney exception. 336 U.S. at 502. Accordingly,
this Court should overturn the Tenth Circuit’s
decision and confirm what NIFLA intimated—that
the government cannot sidestep the First
Amendment simply by reclassifying speech as
conduct whenever a professional engages in
expression the government disfavors. 585 U.S. at
767.
ARGUMENT
I. The Tenth Circuit’s opinion adopts a
professional-speech-as-conduct
doctrine
that contravenes NIFLA by focusing on
whether a professional is speaking and
regulating the act of communication itself,
not a separate form of conduct.
Courts adopting the professional speech doctrine
viewed professional speech as unique and, therefore,
not subject to traditional First Amendment
protections.
As NIFLA detailed, these courts
defined “professionals” as “individuals who provide
personalized services to clients and who are subject
to ‘a generally applicable licensing and regulatory
regime.’ ” Id. (quoting Moore-King v. County of
Chesterfield, 708 F.3d 560, 569 (4th Cir. 2014)).
“Professional speech” included “any speech by these
individuals that is based on ‘[their] expert
knowledge and judgment’ or that is ‘within the
5
confines of [the] professional relationship.’ ” Id.
(citations omitted).
Given this “specialized
knowledge,” coupled with “the State’s imprimatur
and … regulatory oversight,” such courts concluded
“that a licensed professional does not enjoy the full
protection of the First Amendment when speaking
as part of the practice of her profession.” King v.
Governor of New Jersey, 767 F.3d 216, 232 (3d Cir.
2014), abrogated by, NIFLA, 585 U.S. 755.
NIFLA expressly rejected the professional
speech doctrine, denying that professional speech is
“a separate category of speech that is subject to
different rules.” 585 U.S. at 767. As this Court
explained, “[s]peech is not unprotected merely
because it is uttered by ‘professionals.’ ” Id. To
impose
content-based
or
viewpoint-based
restrictions on a category of speech, like Colorado’s
Ban on change counseling, a State must present
“ ‘persuasive evidence … of a long (if heretofore
unrecognized) tradition’ to that effect.” Id. (quoting
United States v. Alvarez, 567 U.S. 709, 722 (2012)
(plurality opinion) (cleaned up)). NIFLA found no
“such … tradition for a category called ‘professional
speech,’ ” id. at 768, and Colorado offered no such
evidence to support taking professional speech to be
conduct.
In fact, NIFLA identified only two situations in
which this Court has afforded professional speech
“less protection”—compelled disclosure of factual,
6
noncontroversial information as part of a
professional’s commercial speech (as in Zauderer)
and a regulation of conduct that involves speech only
incidentally (as in Giboney). Id.; Giboney, 336 U.S.
at 502 (stating that “it has never been deemed an
abridgement of freedom of speech or press to make a
course of conduct illegal merely because the conduct
was in part initiated, evidenced, or carried out by
means of language, either spoken, written, or
printed”). The Court emphasized, however, that
neither of these exceptions “turned on the fact that
professionals were speaking.” NIFLA, 585 U.S. at
768.
Undeterred, the Tenth Circuit sought to avoid
NIFLA by adopting Tingley’s novel professionalspeech-as-conduct doctrine, attempting to squeeze
Colorado’s Counseling Ban into the narrow confines
of the Giboney exception. Tingley v. Ferguson, 47
F.4th 1055, 1064 (9th Cir. 2022) (“States do not lose
the power to regulate the safety of medical
treatments performed under the authority of a state
license merely because those treatments are
implemented through speech rather than through
scalpel.”). According to the panel, Chiles’s speech
was actually a form of conduct, a means of treating
her clients. Chiles, 116 F.4th at 1209 (holding that
Colorado’s Ban “implicates mental health
professionals’ speech only as part of their practice of
mental health treatment”); Tingley, 47 F.4th at 1073
7
(adopting the position in Pickup v. Brown, 740 F.3d
1208, 1229 (9th Cir. 2014), overruled on other
grounds by NIFLA, 585 U.S. 755, that a ban on
“conversion therapy treatment … was a regulation
of conduct” subject only to “rational basis review”).
Given that her counseling occurred within the
counselor-client relationship, the Tenth Circuit held
that Chiles’s desired speech was directed at
assisting her patients and, therefore, was a form of
treatment.
In so holding, the Tenth Circuit ignored a critical
feature of the two contexts where this Court has
afforded professional speech “less protection”—that
“neither [situation] turned on the fact that
professionals were speaking.” Id. at 768. The
problem with the lower court’s opinion is that its
professional-speech-as-conduct doctrine is based on
Chiles’s being a licensed counselor who engages in
specific expression with her minor clients. To
obscure this fact, the panel engages in verbal
gymnastics:
[T]he MCTL regulates the provision of
a therapeutic modality—carried out
through use of verbal language—by a
licensed practitioner authorized by
Colorado to care for patients…. [It]
does not regulate expression. It is the
practice of conversion therapy—not the
discussion of the subject by the mental
8
health provider—that is a “[p]rohibited
activit[y]” under the MCTL.
Chiles, 116 F.4th at 1208. Pure speech (the “use of
verbal language”) that a professional (“a licensed
practitioner authorized by Colorado to care for
patients”) engages in to help a patient (a
“therapeutic modality”) now becomes conduct
subject to government regulation (“the practice of
conversion therapy”). Id. (“[T]he MCTL prohibits a
particular mental health treatment provided by a
healthcare professional to her minor patients.”).
Under this logic, all expression within the
professional relationship that relates to counseling
patients becomes incidental to a form of conduct—
namely, treatment. Id. (“And the MCTL applies to
mental health professionals while practicing their
profession—which is treating patients.”). While the
Tenth Circuit interprets the current Ban to permit
counselors to talk about, promote, or refer their
clients for change counseling, 2 they cannot engage
2 If Chiles is upheld, a counselor’s ability to discuss, promote,
or refer patients for change counseling may be a matter of
legislative (or judicial) grace. Under the panel’s analysis, a
legislature (or court) could readily find that discussing,
promoting, and referring a minor for change counseling
constitutes a “practice … that attempts or purports to change
an individual’s sexual orientation or gender identity, including
efforts to change behaviors or gender expressions or to
eliminate or reduce sexual or romantic attraction or feelings
toward individuals of the same sex.” Colo. Rev. Stat. § 12-245-
9
directly in such counseling with their minor patients
because Colorado has the power to preclude such
professional “conduct.” This is the only way the
panel can support its remarkable claim that, despite
prohibiting speech by a healthcare professional to a
minor patient “that attempts or purports to change
an individual’s sexual orientation or gender
identity,” Colo. Rev. Stat. § 12-245-202(3.5), “[t]he
MCTL does not regulate expression.” Chiles, 116
F.4th at 1208.
If this sounds familiar, it should. The Tenth
Circuit is effectively reincarnating the professional
speech doctrine under the guise of a professional
treatment doctrine. Change counseling is dealt with
differently from the identical expression by a
classmate, religious advisor, or friend because a
professional is speaking. Unlike “an exchange
between a ‘sophomore psychology major’ and her
peers,” the Tenth Circuit contends “the counseling
relationship between provider and patient” receives
less First Amendment protection because that
relationship “involves special privileges, a power
differential, and a financial arrangement.” Id.
When Chiles engages in speech as a professional
counselor, her expression (change counseling)
202(3.5). Such conversations about, oral support for, or
references to other counselors could constitute a “practice”—a
pattern of conduct—that was directed at helping minor
patients change their sexual orientation or gender identity.
10
becomes a form of treatment (a “therapeutic
modality”) that is subject to regulation by the State.
When the psychology major says the exact same
things, though, her speech remains fully protected
because the panel views it as “an informal
conversation among friends.” Id. What accounts for
the difference? The identity of the speaker—Chiles’s
expression receives diminished protection because
she is a professional counselor engaged in certain
(disfavored) professional speech. Thus, whether the
expression is protected speech or “a particular
mental health treatment” depends on the identity of
the speaker. Id.
The Tenth Circuit’s reliance on the special
nature of the counselor-client relationship mirrors
the defining characteristics of “professional speech”
that NIFLA considered and rejected. Under the
professional speech doctrine, professionals are
“individuals who provide personalized services to
clients and who are subject to ‘a generally applicable
licensing and regulatory regime.’ ” NIFLA, 585 U.S.
at 767. “ ‘Professional speech’ is then defined as any
speech by these individuals that is based on ‘[their]
expert knowledge and judgment’ or that is ‘within
the confines of [the] professional relationship.’ ” 585
U.S. at 767 (citations omitted).
The Tenth Circuit’s professional-speech-astreatment doctrine applies only to the speech
between a professional (“a licensed practitioner
11
authorized by Colorado to care for patients”) and her
client because that professional relationship
“involves special privileges, a power differential, and
a financial relationship.” 116 F.4th at 1208. Given
Chiles’s expert knowledge and state license, her
expression “within the confines of [the] professional
relationship” becomes a treatment, a form of conduct
that the State can regulate more readily.
Consequently, whether expression should be treated
as pure speech or professional conduct depends
entirely on who says the words (a professional or a
lay person).
But this just is the professional speech doctrine
under a different name, which is evidenced by the
lower court’s invoking the same passage in Lowe v.
SEC that Pickup relied on when proffering its (now
discredited) formulation of the professional speech
doctrine: “One who takes the affairs of a client
personally in hand and purports to exercise
judgment on behalf of the client in the light of the
client’s individual needs and circumstances is
properly viewed as engaging in the practice of a
profession.” 472 U.S. 181, 232 (1985) (White, J.,
concurring) (quoted in Pickup, 740 F.3d at 1229 and
Chiles, 116 F.4th at 1208). And to borrow from
Shakespeare, a professional speech doctrine by any
other name is just as unconstitutional.
By removing First Amendment protection from
expression “merely because it is uttered by
12
‘professionals,’ ” Chiles and Tingley directly
contravene NIFLA. 585 U.S. at 767. Regardless of
the label used (professional speech or professional
treatment), change counseling consists exclusively
of speech between a counselor and her client.
Colorado’s Ban, therefore, regulates expression, not
conduct, and is subject to First Amendment
scrutiny. Cohen v. California, 403 U.S. 15, 18 (1971)
(“The only ‘conduct’ which the State sought to
punish is the fact of communication. Thus, we deal
here with a conviction resting solely upon ‘speech.’ ’);
Hines v. Pardue, 117 F.4th 769, 776 (5th Cir. 2024)
(recognizing that the regulation in Holder v.
Humanitarian Law Project, 561 U.S. 1 (2010)
(“HLP”) “barred certain forms of speech” because
“whether the plaintiffs could speak with designated
terrorist organizations ‘depended[ed] on what they
[said]’ ”); Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503, 505-06 (1969) (concluding that
wearing a black armband “was closely akin to ‘pure
speech’ which, we have repeatedly held, is entitled
to comprehensive protection under the First
Amendment”).
Moreover, the Tenth Circuit cannot avail itself of
Giboney’s “conduct that incidentally involves
speech” exception because that exception applies
only if there is some conduct—other than the act of
communication itself—that is the object of the
governmental regulation. Otto v. City of Boca Raton,
13
981 F.3d 854, 866 (11th Cir. 2020) (explaining that
“the State punishes speech, not conduct” when “the
only conduct which the State [seeks] to punish [is]
the fact of communication”); Chiles, 116 F.4th at
1228 (Hartz, J., dissenting) (“[A] restriction on
speech is not incidental to regulation of conduct
when the restriction is imposed because of the
expressive content of what is said.”).
Under
Giboney, conduct is not immune from regulation
simply because that “conduct was in part initiated,
evidenced, or carried out by means of language,
either spoken, written, or printed.” 336 U.S. at 502
(emphasis added). But when the alleged conduct
being regulated consists entirely of a speaker
speaking, First Amendment safeguards are
triggered. Because change counseling involves pure
speech, Chiles’s conversations with her minor
patients remain speech under the First Amendment:
“What the governments call a ‘medical procedure’
consists—entirely—of words…. ‘Speech is speech,
and it must be analyzed as such for purposes of the
First Amendment.’ ” Otto, 981 F.3d at 867 (quoting
Wollschlaeger v. Governor of Florida, 848 F.3d 1293,
1307 (11th Cir. 2017)); King, 767 F.3d at 225 (“Given
that the Supreme Court had no difficulty [in HLP]
characterizing legal counseling as ‘speech,’ we see no
reason here to reach the counter-intuitive
conclusion that verbal communications that occur
during SOCE counseling are ‘conduct.’ ”).
14
The difference between conduct incidentally
involving speech and the act of directly
communicating a message is firmly embedded in
this Court’s case law. NIFLA, 585 U.S. at 769
(quoting United States v. Stevens, 559 U.S. 460, 468
(2010) (cleaned up)) (noting that although “drawing
the line between speech and conduct can be difficult”
in some cases, “the line is ‘long and familiar to the
bar’ ”). In the first category, the government’s
“restrictions [are] directed at commerce or conduct”
and have only an “incidental burden[] on speech.”
Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011).
Such regulations of conduct that incidentally
implicate speech have been regularly upheld.
Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 884 (1992) (upholding mandatory disclosures as
part of obtaining informed consent to a physician’s
performing an abortion); Rumsfeld v. Forum for
Academic and Inst. Rights, Inc., 547 U.S. 47, 62
(2006) (bans on discrimination in hiring prohibiting
a “White Applicants Only” sign); R.A.V. v. St. Paul,
505 U.S. 377, 385 (1992) (“an ordinance against
outdoor fires” preventing “burning a flag”); Giboney,
336 U.S. at 502 (antitrust laws precluding
“agreements in restraint of trade”). In each of these
cases, the government regulated “commerce or
conduct” that involved speech only as a part of the
broader conduct, not speech itself. The same is true
of the regulations on the practice of medicine that
Tingley invoked. 47 F.4th at 1081 (describing laws
15
that prohibit the “[p]romotion for personal gain of
any unnecessary or inefficacious drug, device,
treatment, procedure, or service,” “[i]ncompetence,
negligence, or malpractice which results in injury to
a patient or which creates an unreasonable risk that
a patient may be harmed,” and all advertising by
health care professionals that is “false, fraudulent,
or misleading”).
Tellingly, the lower court cited no authority to
support giving Colorado the authority to declare
pure expression to be something that it is not—
conduct—and then to regulate such “treatment” free
from the strictures of the First Amendment. In fact,
this Court’s precedents cut in the opposite direction.
Riley v. Nat’l Fed. of the Blind of N.C., Inc., 487 U.S.
781, 796 (1988) (“[S]tate labels cannot be dispositive
of [the] degree of First Amendment protection.”);
NAACP v. Button, 371 U.S. 415, 439 (1963)
(explaining that “a State may not, under the guise of
prohibiting professional misconduct, ignore [First
Amendment] rights”); Cohen, 403 U.S. at 18
(upholding an individual’s right to wear a jacket
displaying an offensive word because “[t]he only
‘conduct’ which the State sought to punish is the fact
of communication,” which meant that the
“conviction rest[ed] solely upon ‘speech’ ”); Telescope
Media Group v. Lucero, 936 F.3d 740, 752 (8th Cir.
2019) (“Speech is not conduct just because the
government says it is.”). And they do so for good
16
reason—the dangers to free speech are the same
whether the government is allowed to regulate
professional speech or professional “conduct” that
consists solely of communicating a message. In both
situations, professionals are precluded from
expressing their desired messages because the
government disagrees with those messages.
Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (“[A]s a
general matter, the First Amendment means that
government has no power to restrict expression
because of its message, its ideas, its subject matter,
or its content.”).
These prohibitions, therefore, contradict “the
usual rule that governmental bodies may not
prescribe the form or content of individual
expression.” Cohen¸ 403 U.S. at 24. Such contentbased regulations “pose the inherent risk that the
Government seeks not to advance a legitimate
regulatory goal, but to suppress unpopular ideas or
information.” Turner Broad. Sys., Inc. v. FCC, 512
U.S. 622, 641 (1994). And that is especially true of
regulations, like Colorado’s Counseling Ban, that
discriminate based on a speaker’s viewpoint.
Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U.S. 819, 829 (1995) (“When the government
targets not subject matter, but particular views
taken by speakers on a subject, the violation of the
First Amendment is all the more blatant.”).
17
Colorado, of course, remains free to promote its
preferred messages regarding medical treatments,
change counseling, and other issues. Pleasant Grove
City v. Summum, 555 U.S. 460, 467 (2009)
(explaining that the government “has the right to
speak for itself, … to say what wishes, and to select
the views that it wants to express”) (cleaned up).
But in the realm of “private speech or expression,
government regulation may not favor one speaker
over another.” Rosenberger, 515 U.S. at 828. Nor
can the government censor messages it dislikes:
“Our cases establish that the State cannot advance
some points of view by burdening the expression of
others.” Pacific Gas & Elec. Co. v. Pub. Utils.
Comm’n of Cal., 475 U.S. 1, 20 (1986) (plurality
opinion); First Nat. Bank of Boston v. Bellotti, 435
U.S. 765, 785-86 (1978) (“Especially where … the
legislature’s suppression of speech suggests an
attempt to give one side of a debatable public
question an advantage in expressing its views to the
people, the First Amendment is plainly offended.”).
The way for the government to promote its views on
sexual orientation and gender identity (or any other
issue) “is not to punish those who feel differently
about these matters. It is to persuade them that
they are wrong.” Texas v. Johnson, 491 U.S. 397,
419 (1989).
Unfortunately, Colorado took a different path,
banning professional speech that involved a
18
particular set of views (change counseling) with
which Colorado disagreed. This Ban violated both
Chiles’s right to speak and the right of her clients to
receive desired information. Sorrell, 564 U.S. at 578
(“The defect in Vermont’s law is made clear by the
fact that many listeners find detailing instructive.”);
Kleindienst v. Mandel, 408 U.S. 753, 762 (1972)
(quoting Martin v. City of Struthers, 319 U.S. 141,
143 (1943)) (“In a variety of contexts this Court has
referred to a First Amendment right to ‘receive
information and ideas.’ ”). While Colorado believes
change counseling is ineffective and harmful to
minors, “the Constitution does not permit
government to decide which types of otherwise
protected speech are sufficiently offensive to require
protection for the unwilling listener or viewer,”
Erznoznik v. City of Jacksonville, 422 U.S. 205, 210
(1975), let alone willing listeners such as Chiles’s
minor clients. Snyder v. Phelps, 562 U.S. 443, 450
(2011) (protecting speech even though a jury found
it “outrageous” and experts testified it “had resulted
in severe depression and had exacerbated preexisting health conditions”). Post-NIFLA, if the
government wants to prohibit professional speech in
content-based or viewpoint-based ways, it must
satisfy strict scrutiny. 585 U.S. at 767 (overturning
the decisions of courts that “except professional
speech from the rule that content-based regulations
of speech are subject to strict scrutiny”).
19
And such heightened scrutiny is all the more
appropriate given that the Ban discriminates based
on viewpoint. Absent heightened scrutiny, state
legislatures across the country may be emboldened
to regulate a professional’s speech with her patient
based “ ‘upon a categorical balancing of the value of
the speech against its societal costs.’ ” United States
v. Stevens, 559 U.S. 460, 470 (2010) (citation
omitted). That is what Colorado did—banning
change counseling because its legislature concluded
that such counseling was ineffective, disfavored by
various professional groups, and harmful to minors.
Chiles, 116 F.4th at 1216-18.
The problem is that Stevens expressly rejected
this type of balancing test:
The First Amendment’s guarantee of
free speech does not extend only to
categories of speech that survive an ad
hoc balancing of relative social costs
and benefits. The First Amendment
itself reflects a judgment by the
American people that the benefits of its
restrictions on the Government
outweigh the costs. Our Constitution
forecloses any attempt to revise that
judgment simply on the basis that
some speech is not worth it.
559 U.S. at 470. The Colorado legislature may view
change counseling as “valueless or unnecessary,”
20
but its “ad hoc calculus of costs and benefits” does
not determine the scope of First Amendment
protection. Id. at 471; Johnson, 491 U.S. at 414 (“If
there is a bedrock principle underlying the First
Amendment, it is that the government may not
prohibit the expression of an idea simply because
society finds the idea itself offensive or
disagreeable.”). Whether Colorado disagrees with
change counseling (or any other type of professional
speech) “for good reasons, great reasons, or terrible
reasons has nothing at all to do with it. All that
matters is that a therapist’s speech to a minor client
is legal or illegal under the ordinances based solely
on its content.” Otto, 981 F.3d at 863.
The same analysis applies even when the
government seeks to protect children from
expression it views as harmful: “Even where the
protection of children is the object, the constitutional
limits on governmental action apply.” Brown v. Ent.
Merchs. Ass’n, 564 U.S. 786, 804-05 (2011). As this
Court explained in Erznoznik, “[s]peech that is
neither obscene as to youths nor subject to some
other legitimate proscription cannot be suppressed
solely to protect the young from ideas or images that
a legislative body thinks unsuitable for them.” 422
U.S. at 213-14; Brown, 564 U.S. at 794-95 (holding
that the State’s power to protect children “does not
include a free-floating power to restrict the ideas to
which children may be exposed”). Otherwise, the
21
government could “shut off discourse solely to
protect others from hearing it … effectively
empower[ing] a majority to silence dissidents simply
as a matter of personal predilections.” Cohen, 403
U.S. at 21. This Court long ago rejected the view
that the Constitution “prescribe[es] limits, and
declar[es] that those limits may be passed at
pleasure.” Marbury v. Madison, 5 U.S. 137, 178
(1803); Tingley, 57 F.4th at 1077 (O’Scannlain, J.,
dissenting from denial of rehearing en banc) (“But it
would make no sense for the First Amendment to
protect speech through heightened scrutiny while
subjecting legislative determinations of the line
between speech and conduct only to rational basis
review.”); Wollschlaeger, 848 F.3d at 1308 (citation
omitted) (“[T]he enterprise of labeling certain verbal
or written communications ‘speech’ and others
‘conduct’ is unprincipled and susceptible to
manipulation.”).
To protect children (or anyone else) through
content-based or viewpoint-based restrictions on
speech, the government must satisfy heightened
scrutiny. NIFLA, 585 U.S. at 766 (quoting Reed v.
Town of Gilbert, 576 U.S. 155, 163 (2015)) (“As a
general matter, [content-based regulations] ‘are
presumptively unconstitutional and may be justified
only if the government proves that they are
narrowly tailored to serve compelling state
interests.’ ”). Mirroring the professional speech
22
doctrine, however, the Tenth Circuit applied only
rational basis review to Colorado’s viewpoint-based
Ban, 116 F.4th at 1215, and, therefore, should be
reversed.
II. Button, White, Hurley, and 303 Creative
confirm that professional speech, like other
forms of expression, receives full First
Amendment protection.
As this Court explained in Button, when
professionals engage in expression as part of their
jobs, the government cannot circumvent First
Amendment protections simply by claiming that it
is safeguarding professional standards: “it is no
answer to the constitutional claims asserted by
petitioner to say … that the purpose of these
regulations was merely to insure high professional
standards and not to curtail free expression.” 371
U.S. at 438. In Chiles, Colorado did just that,
claiming that its Mental Health Practice Act was
meant to “ ‘protect the people of this state against
the unauthorized, unqualified, and improper
application’ of mental healthcare.” 116 F.4th. at
1205. While ensuring that professionals adhere to
appropriate standards of conduct is important,
Button and its progeny require States to satisfy
strict scrutiny when regulating the expression of
professionals in a content-based or viewpoint-based
way.
23
In Button, Virginia sought to ban “the NAACP’s
activities in furtherance of litigation” through a
statute that precluded “improper solicitation.” 371
U.S. at 438. The “activities” at issue consisted
entirely of speech—“urg[ing] Negroes aggrieved by
the allegedly unconstitutional segregation of public
schools in Virginia to exercise their legal rights and
to retain members of the Association’s legal staff.”
Id. at 437. This Court did not hesitate to reject
Virginia’s claim that the NAACP attorneys’ speech
“f[e]ll within the traditional purview of state
regulation of professional conduct,” confirming that
“a State may not, under the guise of prohibiting
professional misconduct, ignore constitutional
rights.” Id. at 438; Riley, 487 U.S. at 798 (finding
speech compulsions related to professional
fundraising unconstitutional). Because Virginia’s
law was “content-based” and “regulate[d] the
noncommercial speech of lawyers,” Button applied
strict scrutiny. NIFLA, 585 U.S. at 771 (citing to
Reed’s discussion of Button).
Under Button, then, “a State cannot foreclose the
exercise of constitutional rights by mere labels.” 371
U.S. at 429.
Courts must look beyond the
government’s characterization of a law as a
regulation of “conduct” to determine whether the
law “was directed at [petitioner] because of what
[her] speech communicated.” HLP, 561 U.S. at 28;
Reed, 576 U.S. at 167 (describing how “the Court
24
rightly rejected the State’s claim [in Button] that its
interest in the ‘regulation of professional conduct’
rendered the statute consistent with the First
Amendment”). Strict scrutiny applies when “[t]he
law … may be described as directed at conduct, as
the law in Cohen was directed at breaches of the
peace, but as applied to plaintiffs the conduct
triggering coverage under the statute consists of
communicating a message.” HLP, 561 U.S. at 28;
Hines, 117 F.4th at 776 (concluding, based on HLP,
that “a particular act constitutes protected speech,
rather than unprotected conduct, if that act ‘consists
of communicating a message’ ”).
Professionals engage in a wide range of activities
when serving their clients and patients. At their
core,
many
of
these
activities
involve
“communicating a message” regardless of how the
government describes them. HLP, 561 U.S. at 28.
Button is instructive on this point. Lawyers—who
are legal professionals—represent clients, appear in
court, research legal matters, solicit new business,
negotiate, draft settlements, and engage in a vast
array of other activities that the government might
claim “fall within the traditional purview of state
regulation of professional conduct.” Button, 371
U.S. at 438. But when the only conduct the State
seeks to regulate is the act of communication itself,
“this Court’s precedents have long protected the
First Amendment rights of professionals.” NIFLA¸
25
585 U.S. at 771; Button, 371 U.S. at 438 (striking
down Virginia’s attempt “to insure high professional
standards” for lawyers because the regulation
imposed a “serious encroachment … upon protected
freedoms of expression”).
Content-based regulations of professional
speech, like the Ban here, “pose the inherent risk
that the Government seeks not to advance a
legitimate regulatory goal, but to suppress
unpopular ideas or information.” Turner Broad.,
512 U.S. at 641. Because counselors and “[d]octors
help patients make deeply personal decisions, …
their candor is crucial,” Wollschlaeger, 848 F.3d at
1328, and strict scrutiny is needed to ensure that the
government does not “ ‘manipulat[e] the content of
doctor-patient discourse; to increase state power and
suppress minorities.” NIFLA, 585 U.S. at 771
(citation omitted); United States v. Eichman, 496
U.S. 310, 317-18 (1990) (holding that legislation
“must be subjected to ‘the most exacting scrutiny’ ”
when “[i]t suppresses expression out of concern for
its likely communicative impact”).
In the wake of Button, this Court has subjected
other restrictions on professional speech to strict
scrutiny. For example, in Republican Party of
Minnesota v. White, Minnesota sought to regulate
the campaign activity of candidates for judicial
office. While running for a seat on the Minnesota
Supreme Court, Gregory Wersal “distributed
26
literature criticizing several Minnesota Supreme
Court decisions on issues such as crime, welfare, and
abortion.” 536 U.S. 765, 768 (2002). A complaint
was filed against Wersal with the Minnesota
Lawyers Professional Responsibility Board (the
“Board”), alleging that his literature violated a
provision of the Minnesota Code of Judicial Conduct
(the “Announce Clause”), which prohibited a judicial
candidate from “announc[ing] his or her views on
disputed legal or political issues.” Id. Fearing that
such complaints might jeopardize his ability to
practice law, Wersal withdrew from the election.
Two years later, he ran again for the same position
but sought an advisory opinion from the Board
regarding its intent to enforce the Announce Clause.
Having not received a definitive answer, Wersal
filed suit in federal court seeking a declaration that
the Announce Clause violated the First
Amendment.
Although Wersal engaged in certain forms of
conduct (e.g., running for office and campaigning),
the Announce Clause directly restricted his
expression, “prohibit[ing] speech on the basis of its
content and burden[ing] a category of speech that is
‘at the core of our First Amendment freedoms’—
speech about the qualifications of candidates for
public office.” Id. at 774. The regulation, therefore,
restricted the speech of legal professionals, and the
Court applied strict scrutiny, requiring the state
27
parties to prove that the Announce Clause was
narrowly tailored to serve a compelling interest. Id.
What White said about speech restrictions in the
context of legal professionals running for judicial
office applies with equal force to professional speech
generally: “If the State chooses to tap the energy and
the legitimizing power of the [professional licensing]
process, it must accord the participants in that
process … the First Amendment rights that attach
to their roles.” Id. at 788 (cleaned up). Not
surprisingly, despite Minnesota’s interest in
“preserving the impartiality of the state judiciary,”
id. at 755, the Board and its officers could not satisfy
strict scrutiny because, inter alia, “ ‘[i]t is simply not
the function of the government to select which issues
are worth discussing or debating in the course of a
political campaign.’ ” Id. at 782 (quoting Brown v.
Hartlage, 456 U.S. 45, 60 (1982)).
Button and White directly support NIFLA’s
holding that professional speech is not sui generis.
Professional speech is speech and, as a result,
receives full First Amendment protection unless the
government “require[s] professionals to disclose
factual, noncontroversial information in their
‘commercial speech’ ” or “regulate[s] professional
conduct, even though that conduct incidentally
involves speech.” NIFLA, 585 U.S. at 768; Zauderer,
471 U.S. at 637 n.7 (noting that, if communicated
outside the commercial speech context, the lawyer’s
28
statements would have been “fully protected
speech”). Colorado’s Ban is not directed at Chiles’s
commercial speech or her non-speech conduct;
rather, Colorado targets her expression because it
advances a particular viewpoint with which the
State disagrees. Rosenberger, 515 U.S. at 829
(“Viewpoint discrimination is thus an egregious
form of content discrimination. The government
must abstain from regulating speech when the
specific motivating ideology or the opinion or
perspective of the speaker is the rationale for the
restriction.”); Turner Broad., 512 U.S. at 642 (“Our
precedents thus apply the most exacting scrutiny to
regulations that suppress, disadvantage, or impose
differential burdens upon speech because of its
content.”).
And “[t]he message [Colorado] disfavored is not
difficult to identify.” Hurley, 515 U.S. at 574.
Colorado opposed change counseling based on its
“particular viewpoint about sex, gender, and sexual
ethics.” Otto¸ 981 F.3d at 864. In place of change
counseling, Colorado codified its own perspective—
that “sexual orientation is immutable, but gender is
not”—and prevented therapists from engaging in
expression that was inconsistent with the State’s
view. Id. By barring a particular viewpoint on this
important issue, Colorado skewed the marketplace
of ideas, permitting only state-approved speech in
sessions with minor clients who sought help
29
“prioritiz[ing] their faith above their feelings … to
live a life consistent with their faith.” Chiles, 116
F.4th at 1193; FCC v. Pacifica Found., 438 U.S. 726,
745-46 (1978) (“[T]he fact that society may find
speech offensive is not a sufficient reason for
suppressing it. Indeed, if it is the speaker’s opinion
that gives offense, that consequence is a reason for
according it constitutional protection. For it is a
central tenet of the First Amendment that the
government must remain neutral in the
marketplace of ideas.”). The First Amendment
prohibits such expressive gerrymandering:
The very idea that a noncommercial
speech restriction be used to produce
thoughts and statements acceptable to
some groups or, indeed, all people,
grates on the First Amendment, for it
amounts to nothing less than a
proposal to limit speech in the service
of orthodox expression. The Speech
Clause has no more certain antithesis.
Hurley, 515 U.S. at 579; W.V. State Bd. of Educ. v.
Barnette, 319 U.S. 624, 642 (1943) (“But freedom to
differ is not limited to things that do not matter
much. That would be a mere shadow of freedom.
The test of its substance is the right to differ as to
things that touch the heart of the existing order.”);
Whitney v. California, 274 U.S. 357, 377 (1927)
(Brandeis, J., concurring) (explaining that when the
30
government objects to expression, “the remedy to be
applied is more speech, not enforced silence”); Otto,
981 F.3d at 862 (“Forbidding the government from
choosing favored and disfavored messages is at the
core of the First Amendment’s free-speech
guarantee.”).
Hurley illustrates the point well. In Hurley, this
Court recognized that public accommodations laws
“do not, as a general matter, violate the First or
Fourteenth Amendments.” 515 U.S. at 572. When
“applied in a peculiar way” (i.e., “to the sponsors’
speech itself”), however, such laws “violate[] the
fundamental rule of protection under the First
Amendment, that a speaker has the autonomy to
choose the content of his own message.” Id, at 57273.
The government’s authority to regulate
conduct—namely, “the act of discriminating against
individuals in the provision of publicly available
goods, privileges, and services”—did not extend to
the regulation of “[t]he protected expression that
inheres in a parade.” Id. at 572, 569. Although
“marching” is a form of conduct, “[p]arades are … a
form of expression” through which “marchers …
mak[e] some sort of collective point.” Id. at 568.
Accordingly, “[w]hile the law is free to promote all
sorts of conduct in place of harmful behavior, it is
not free to interfere with speech for no better reason
than promoting an approved message or
discouraging a disfavored one, however enlightened
31
either purpose may strike the government.” Id. at
579.
Similarly, 303 Creative concluded that Colorado’s
public accommodations law violated the First
Amendment because Colorado sought “to use the
law to compel an individual to create speech she
does not believe.” 600 U.S. at 578-79. Instead of
regulating 303 Creative’s conduct, Colorado applied
its public accommodations law to its owner’s
expressive activity: “If she wishes to speak, she must
either speak as the State demands or face sanctions
for expressing her own beliefs.” Id. at 589. This
Court concluded that such an alleged “choice … ‘is
enough,’ more than enough, to represent an
impermissible abridgment of the First Amendment’s
right to speak freely.” Id. (quoting Hurley, 515 U.S.
at 574). Although the public accommodations law
“had many lawful applications,” Colorado could not
apply that law to a business owner’s expression. Id.
at 592; Id. (“When a state public accommodations
law and the Constitution collide, there can be no
question which must prevail.”).
The same analysis governs the Counseling Ban.
Although Colorado generally can regulate the
conduct of counselors and other professionals, its
attempt to regulate Chiles’s oral communications
with her minor clients “collides” with the First
Amendment. Here, as in 303 Creative, Colorado
contended that its laws regulated only conduct
32
(“treatment” in Chiles and the “sale of an ordinary
commercial product” in 303 Creative). Id. at 593.
“On the State’s telling” in both cases, “speech more
or less vanishes from the picture—and, with it, any
need for First Amendment scrutiny.” Id. Yet, as
discussed above, a State cannot transform speech
into conduct simply by (repeatedly) calling it
“treatment.” Riley, 487 U.S. at 781 (citing Bigelow
v. Virginia, 421 U.S. 809, 826 (1975)) (“[S]tate labels
cannot be dispositive of [the] degree of First
Amendment protection.”).
Colorado’s Ban violates the First Amendment
because it restricts Chiles’s expression, putting her
to the same type of Hobson’s choice that this Court
found unconstitutional in 303 Creative: Chiles may
counsel her minor clients on gender identity “as the
State demands” (i.e., by “provid[ing] … [a]cceptance,
support, and understanding for the facilitation of”
gender transition, Colo. Rev. Stat. § 12-245202(3.5)) or “face sanctions for expressing her own
beliefs” during counseling sessions (i.e., by
“attempt[ing] or purport[ing] to change an
individual’s sexual orientation or gender identity,”
id.). 303 Creative, 600 U.S. at 589. The only other
alternative—remain quiet and forego engaging in
her desired expression—compels silence, which also
violates the First Amendment. Riley, 487 U.S. at
796 (explaining that “in the context of protected
speech, the difference [between compelled speech
33
and compelled silence] is without constitutional
significance”). The Counseling Ban, therefore,
“plainly ‘alters the content’ of [Chiles’s] speech,”
NIFLA, 585 U.S. at 766 (quoting Riley, 487 U.S. at
795), which, in turn, “regulat[es] the content of [her]
speech [and] ‘pose[s] the inherent risk that the
Government seeks not to advance a legitimate
regulatory goal, but to suppress unpopular ideas or
information.’ ” Id. at 771 (quoting Turner Broad.,
512 U.S. at 641); Police Dep’t of City of Chicago v.
Mosley, 408 U.S. 92, 95 (1972) (“[A]bove all else, the
First Amendment means that government has no
power to restrict expression because of its message,
its ideas, its subject matter, or its content.”).
As a result, “Colorado does not seek to impose an
incidental burden on speech. It seeks to force
[Chiles] to ‘utter what is not in [her] mind’ about a
question of political and religious significance,” and
to “affect a ‘speaker’s message’ by ‘forc[ing]’ her to
‘accommodate’ other views,” to “ ‘alter’ the
’expressive content’ of her message,” and to
“ ‘interfer[e] with’ her ‘desired message.’ ” 303
Creative, 600 U.S. at 596 (citations omitted); id. at
597 (concluding that a burden on speech is not
“incidental” when a State “intends to force [a
speaker] to convey a message she does not believe
with the ‘very purpose’ of ‘[e]liminating … ideas’
that differ from its own”) (citation omitted); Hurley,
515 U.S. at 563 (using Massachusetts’s public
34
accommodations law to force parade organizers to
include speech with which they disagreed was more
than an “ ‘incidental’ ” infringement on First
Amendment speech rights); Dale, 530 U.S. at 659
(requiring the Boy Scouts to accept particular
members under a public accommodations law had
more than “an incidental effect on protected
speech”).
Contrary to Giboney, Colorado’s
Counseling Ban imposes a direct and substantial
burden on professional speech, not an incidental
one.
A recent example from the legal field further
illustrates how the Tenth Circuit’s decision
jeopardizes professional speech.
In 2016, the
American Bar Association proposed Model Rule
8.4(g). Under the proposed Rule:
It is professional misconduct for a
lawyer to: … (g) engage in conduct that
the lawyer knows or reasonably should
know is harassment or discrimination
on the basis of race, sex, religion,
national origin, ethnicity, disability,
age,
sexual
orientation,
gender
identity,
marital
status
or
socioeconomic status in conduct related
to the practice of law….
This
paragraph does not preclude legitimate
advice or advocacy consistent with
these rules.
35
ABA, Model Rules of Professional Conduct, Rule 8.4
(Aug. 2016) (available at https://www.americanbar.
org/groups/professional_responsibility/publications/
model_rules_of_professional_conduct/rule_8_4_mis
conduct/). While the text of the Rule referred only to
conduct, Comment 3 revealed that the Rule also
operated as a speech code, curtailing written and
oral expression:
Discrimination … by lawyers in
violation of paragraph (g) … includes
harmful verbal or physical conduct that
manifests bias or prejudice towards
others. Harassment includes sexual
harassment
and
derogatory
or
demeaning verbal or physical conduct.
Sexual
harassment
includes
unwelcome sexual advances, requests
for sexual favors, and other unwelcome
verbal or physical conduct of a sexual
nature.
ABA, Model Rules of Professional Conduct, Rule 8.4,
Comments
(Aug.
2016)
(available
at
https://www.americanbar.org/groups/professional_r
esponsibility/publications/model_rules_of_professio
nal_conduct/rule_8_4_misconduct/comment_on_rul
e_8_4/). The purpose of the Rule was to foster a
“cultural shift” in views on discrimination and
harassment: “There is a need for a cultural shift in
understanding the inherent integrity of people
36
regardless of their race, color, national origin,
religion, age, sex, gender identity, gender
expression, sexual orientation, marital status, or
disability, to be captured in the rules of professional
conduct.”
December 22, 2015 Memorandum,
Standing Committee on Ethics and Professional
Responsibility (available at https://www.american
bar.org/content/dam/aba/administrative/profession
al_responsibility/rule_8_4_amendments_12_22_201
5.authcheckdam.pdf). To bring about this “cultural
shift,” the ABA deemed it necessary to regulate both
“physical conduct” and “verbal conduct.”
Among its other problems, Model Rule 8.4(g)
conflates speech and conduct in the same way that
Chiles and Tingley do.
Discriminatory and
harassing conduct includes speech with which the
ABA disagrees. By labeling the disfavored speech as
“verbal conduct,” the ABA attempts to move the
Rule outside the protection of the First Amendment.
Consistent with Chiles, the ABA’s “speech is
conduct” rule has broad scope, applying to all
“[c]onduct related to the practice of law[, which]
includes representing clients; interacting with
witnesses, coworkers, court personnel, lawyers and
others while engaged in the practice of law.” Rule
8.4, Comment 4. Transforming speech into conduct,
Rule 8.4(g) seeks to codify viewpoint-based
discrimination in relation to the practice of law.
Speech that does not “manifest bias or prejudice” is
37
permissible, and “[l]awyers may engage in conduct
undertaken to promote diversity and inclusion
without violating this rule….” Rule 8.4(g). As
Professor Rotunda aptly put the point, “[t]he ABA
rule is not about forbidding discrimination based on
sex or marital status; it is about punishing those
who say or do things that do not support the ABA’s
particular view of sex discrimination or marriage.”
Ronald D. Rotunda, The Heritage Foundation
Report (October 6, 2016), “The ABA Decision to
Control What Lawyers Say: Supporting ‘Diversity’
but not Diversity of Thought” (available at
https://www.heritage.org/report/the-aba-decisioncontrol-what-lawyers-say-supporting-diversity-notdiversity-thought). If the Tenth Circuit’s decision
stands, States will be able to adopt Model Rule 8.4(g)
and silence lawyers who hold views that interfere
with the ABA’s efforts to bring about its desired
“cultural shift.”
CONCLUSION
For the foregoing reasons, this Court should
reverse the Tenth Circuit and, in so doing, reaffirm
NIFLA’s recognition that professional speech is fully
protected unless it falls within the narrow
exceptions set forth in Zauderer and Giboney,
neither of which applies to Chiles’s professional
speech with her minor clients.
38
Respectfully submitted,
SCOTT W. GAYLORD
HIGH POINT UNIVERSITY SCHOOL OF LAW
APPELLATE ADVOCACY CLINIC
One University Parkway
High Point, NC 27268
Phone: (336) 841-2635
Email: sgaylord@highpoint.edu
Counsel for Amicus Curiae
June 13, 2025
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